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Do your supervisors know how to investigate claims of harassment in your company? With harassment claims skyrocketing, every business owner should be vigilant about taking these claims seriously. So how do you know when to start an investigation? An employer is on the hook for liability as soon as supervisors, managers, or owners learn about harassment in the workplace. Whether you observe the action yourself or learn about it from another employee or supervisor, you are liable and legally obligated to begin an investigation.

Who is a Supervisor?

A supervisor is defined as anyone at the company authorized to change another employee’s employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Vance v. Ball State University, No. 11-556 (June 24, 2013).  Therefore, if a supervisor promptly takes action to investigate, then the business may be able to mitigate the damages.  However, liability risk is triggered when a supervisor fails to investigate when the circumstances require an investigation.

What triggers an investigation into workplace harassment?

The triggers for an investigation could come from an anonymous complaint, rumors circulating around the office, personal observations, or cryptic social media posts alluding to harassment at work. Employees can also bypass reporting harassment to a supervisor and file a claim with the state where the business is located or with the EEOC. That will trigger an automatic investigation which any business owner wants to avoid.  But often, an employee will tell a supervisor about harassment of a co-worker who is not comfortable talking to the supervisor directly or the employee may be talking about themselves.  

Should a supervisor honor an employee’s request for complete confidentiality when investigating a harassment claim?

The short answer is no! Often an employee will meet with a supervisor to discuss a situation and beg the supervisor “not to say anything.” Tip: Supervisors should never guarantee or promise to keep information about harassment confidential. A supervisor who honors confidentiality requests does so at the employer’s peril. The reality is that we are dealing with human beings, and talking about harassing behavior may feel uncomfortable for all involved.  Moreover, the supervisor may even be friends with the employee and probably wants the employee to trust the supervisor. Your supervisors represent the company and have certain duties to protect the company. It’s critical that your supervisors understand they have a legal obligation here.  The supervisor should tell the employee, “I cannot promise confidentiality because I have a legal duty to take action.”  Then, the immediate next step for this supervisor is to begin an investigation.

The most important takeaway to remember, according to Lisa Berg in BeLabor the Point is this: “When a court determines to hold an employer liable for the actions of an employee’s coworker, it will examine whether the employer knew or should have known about the alleged harassment but failed to respond….The fact that the employee asked you to keep the complaint confidential does not outweigh your legal obligation to maintain a workplace free from all forms of unlawful harassment. Moreover, if you fail to timely act, you might allow an employee to pursue an otherwise time-barred harassment complaint.”

What happens if you determine, no harassment?

Not all investigations of harassment will require certain actions. Why? The allegations may not be based on protected characteristics such as race, religion, or gender, a legal requirement for harassment. Sometimes there may not be enough evidence to support or refute the claim. In other cases, there may be evidence that some level of unprofessional conduct (like bullying) occurred, but it doesn’t rise to the level of violating a company’s anti-harassment policy.

In these circumstances, it’s important to communicate compassion and fairness to the employee who initiated the harassment claim, which can help if a future claim arises again. But your company could still be exposed to unnecessary legal risk even when the investigation didn’t lead to harassment charges. To minimize that risk, take these steps:

  1. Have the alleged harasser sign the company’s anti-harassment policy for two reasons. First, it will remind them of what is expected and not tolerated. And second, if a future claim arises, you will be able to provide evidence that you took steps to prevent harassment at the workplace.
  2. Reassure the complainant that you appreciate them bringing the issue to your attention.
  3. Document your investigation in great detail, including how you reached your decision and why there wasn’t enough evidence to proceed with the claim.
  4. Remind all parties that retaliation will not be tolerated, as stated in your handbook.
  5. Follow up with both parties frequently until you feel the issue is resolved.
  6. Develop a plan to avoid any future problems. Are there personality conflicts? Should they work further apart from each other? How can communication between the parties be improved?

How can written investigation protocols protect a company? 

Supervisors juggle many responsibilities, which makes investigating harassment claims hard, but it’s not an excuse to ignore them. Training supervisors about your investigation protocols makes these complaints easier to be handled consistently and effectively. To reduce the exposure of your company, consider the following when drafting these protocols:

  • Are your internal investigations carried out to demonstrate commitment to the company’s corporate culture?
  • Does your complaint process allow for a rapid response to complaints that present the greatest exposure to your company?
  • Do you ensure appropriate contacts and responses to whistleblowers and complainants?
  • Do you provide guidance and resources for appropriately conducting investigations?
  • How do you protect investigation materials and distribute investigation results?

Training Supervisors is Key

Harassment training is key so supervisors know how to respond quickly, reducing an employer’s liability. The best way to handle a complaint is to respond immediately. If you ignore a claim for a few months, the damages you will pay will increase. If you never respond, your damages will go up even more. But, if you flip your thinking around and respond immediately by starting an investigation, you can reduce the damages significantly. Do your supervisors know how you want them to respond when they receive a complaint from an employee? Prevention is the key to avoiding a lawsuit, which begins with training your supervisors to recognize and report harassment. Ensure your policies are updated in your employee handbook and conduct regular training, specifically for supervisors, and then training for all employees. You must set expectations that your company will not tolerate such behavior and will promptly address workplace harassment.

You Can’t Afford to Ignore Harassment

There is a myriad of ways an employer can achieve the goal of eliminating harassment in the workplace. No business can afford to ignore harassment claims. As a business owner, you have a legal duty to investigate harassment claims. It’s never too late to take action that protects your business and provides a safe workplace environment.

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